1838

MESHWERKS, INC., a Utah corporation, Plaintiff-Appellant,

v.
TOYOTA MOTOR SALES U.S.A., INC., a California corporation; Grace &
Wild, a Michigan corporation doing business as Division X; 3D Recon, a Utah
limited liability company; Saatchi & Saatchi North America, a California
corporation, Defendants-Appellees.
3
No. 06-4222.
4
United States Court of Appeals, Tenth Circuit.
5
June 17, 2008.
6
[1259] Lewis M. Francis (Jerome Romero with him on the briefs) of Jones
Waldo Holbrook & McDonough PC, Salt Lake City, UT, for Plaintiff-Appellant.
7
Brian D. Wassom of Honigman Miller Schwartz and Cohn LLP, Detroit, MI
(Michael A. Lisi of Honigman Miller Schwartz and Cohn LLP, Detroit, MI and
Arthur B. Berger of Ray Quinney & Nebeker P.C., Salt Lake City, UT, with him
on the brief), for Defendants-Appellees Toyota Motor [1260] Sales, Inc., Grace
& Wild, Inc. and Saatchi & Saatchi North America, Inc.
8
Stephen Quesenberry and J. Bryan Quesenberry of Hill, Johnson & Schmutz,
Provo, UT, for Defendant-Appellee 3D Recon, LLC.
9
Before BRISCOE, GORSUCH, and HOLMES, Circuit Judges.
10
GORSUCH, Circuit Judge.
11
This case calls on us to apply copyright principles to a relatively new
technology: digital modeling. Meshwerks insists that, contrary to the district
court's summary judgment determination, its digital models of Toyota cars
and trucks are sufficiently original to warrant copyright protection.
1 of 14
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Meshwerks' models, which form the base layers of computerized substitutes
for product photographs in advertising, are unadorned, digital wire-frames of
Toyota's vehicles. While fully appreciating that digital media present new
frontiers for copyrightable creative expression, in this particular case the
uncontested facts reveal that Meshwerks' models owe their designs and
origins to Toyota and deliberately do not include anything original of their
own; accordingly, we hold that Meshwerks' models are not protected by
copyright and affirm.
12
I
13
A
14
In 2003, and in conjunction with Saatchi & Saatchi, its advertising agency,
Toyota began work on its model-year 2004 advertising campaign. Saatchi and
Toyota agreed that the campaign would involve, among other things, digital
models of Toyota's vehicles for use on Toyota's website and in various other
media. These digital models have substantial advantages over the product
photographs for which they substitute. With a few clicks of a computer mouse,
the advertiser can change the color of the car, its surroundings, and even edit
its physical dimensions to portray changes in vehicle styling; before this
innovation, advertisers had to conduct new photo shoots of whole fleets of
vehicles each time the manufacturer made even a small design change to a car
or truck.
15
To supply these digital models, Saatchi and Toyota hired Grace & Wild, Inc.
("G & W"). In turn, G & W subcontracted with Meshwerks to assist with two
initial aspects of the projectdigitization and modeling. Digitizing involves
collecting physical data points from the object to be portrayed. In the case of
Toyota's vehicles, Meshwerks took copious measurements of Toyota's vehicles
by covering each car, truck, and van with a grid of tape and running an
articulated arm tethered to a computer over the vehicle to measure all points
of intersection in the grid. Based on these measurements, modeling software
then generated a digital image resembling a wire-frame model. In other
words, the vehicles' data points (measurements) were mapped onto a
computerized grid and the modeling software connected the dots to create a
"wire frame" of each vehicle.
16

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At this point, however, the on-screen image remained far from perfect and
manual "modeling" was necessary. Meshwerks personnel fine-tuned or, as the
company prefers it, "sculpted," the lines on screen to resemble each vehicle as
closely as possible. Approximately 90 percent of the data points contained in
each final model, Meshwerks represents, were the result not of the first-step
measurement process, but of the skill and effort its digital sculptors manually
expended at the second step. For example, some areas of detail, such as
wheels, headlights, door handles, and the Toyota emblem, could not be
accurately measured using current technology; those features had to be added
[1261] at the second "sculpting" stage, and Meshwerks had to recreate those
features as realistically as possible by hand, based on photographs. Even for
areas that were measured, Meshwerks faced the challenge of converting
measurements taken of a three-dimensional car into a two-dimensional
computer representation; to achieve this, its modelers had to sculpt, or move,
data points to achieve a visually convincing result. The purpose and product of
these processes, after nearly 80 to 100 hours of effort per vehicle, were two-
dimensional wire-frame depictions of Toyota's vehicles that appeared three-
dimensional on screen, but were utterly unadornedlacking color, shading,
and other details. Attached to this opinion as Appendix A are sample screen-
prints of one of Meshwerks' digital wire-frame models.
17
With Meshwerks' wire-frame products in hand, G & W then manipulated the
computerized models by, first, adding detail, the result of which appeared on
screen as a "tightening" of the wire frames, as though significantly more wires
had been added to the frames, or as though they were made of a finer mesh.
Next, G & W digitally applied color, texture, lighting, and animation for use in
Toyota's advertisements. An example of G & W's work product is attached as
Appendix B to this opinion. G & W's digital models were then sent to Saatchi
to be employed in a number of advertisements prepared by Saatchi and
Toyota in various print, online, and television media.[1]
18
B
19
This dispute arose because, according to Meshwerks, it contracted with G & W
for only a single use of its modelsas part of one Toyota television
commercialand neither Toyota nor any other defendant was allowed to use
the digital models created from Meshwerks' wire-frames in other
advertisements. Thus, Meshwerks contends defendants improperlyin
violation of copyright laws as well as the parties' agreementreused and
redistributed the models created by Meshwerks in a host of other media. In

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support of the allegations that defendants misappropriated its intellectual
property, Meshwerks points to the fact that it sought and received copyright
registration on its wire-frame models.[2]
20
In due course, defendants moved for summary judgment on the theory that
Meshwerks' wire-frame models lacked sufficient originality to be protected by
copyright. Specifically, defendants argued that any original expression found
in Meshwerks' products was attributable to the Toyota designers who
conceived of the vehicle designs in the first place; accordingly, defendants' use
of the models could not give rise to a claim for copyright infringement.
21
The district court agreed. It found that the wire-frame models were merely
copies of Toyota's products, not sufficiently original to warrant copyright
protection, and stressed that Meshwerks' "intent was to replicate, as exactly as
possible, the image of certain Toyota vehicles." D. Ct. Op. at 8, 2008 WL
2420869. Because there was no valid copyright, there could be no
infringement, and, having granted summary judgment on the federal
copyright claim, the district court declined to exercise supplemental
jurisdiction over Meshwerks' state-law contract claim. Today, Meshwerks
[1262] asks us to reverse and hold its digital, wire-frame models sufficiently
original to warrant copyright protection.[3]
22
II
23
To make a case for copyright infringement, Meshwerks must show (1) it owns
a valid copyright, and (2) defendants copied constituent elements of the work
that are original to Meshwerks. Autoskill Inc. v. Nat'l Educ. Support Sys., Inc.,
994 F.2d 1476, 1487 (10th Cir.1993). Our inquiry in this case focuses on the
first of these teststhat is, on the question whether Meshwerks held a valid
copyright in its digital wire-frame models. Because Meshwerks obtained
registration certificates for its models from the Copyright Office, we presume
that it holds a valid copyright. See 17 U.S.C. 410(c); Palladium Music, Inc. v.
EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir.2005). At the same time,
defendants may overcome this presumption by presenting evidence and legal
argument sufficient to establish that the works in question were not entitled to
copyright protection. Palladium Music, Inc., 398 F.3d at 1196. Because this
case comes to us on summary judgment, we review the question whether
Meshwerks holds a valid copyright de novo and will affirm the district court's
judgment only if, viewing all of the facts in the light most favorable to

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Meshwerks, we are able to conclude that "there is no genuine issue as to any
material fact and that [defendants are] entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c).[4]
24
A
25
The Constitution authorizes Congress "[t]o promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries." U.S. Const. art.
I, 8, cl. 8. The Supreme Court has emphasized that the power afforded by
this provisionnamely, to give an author exclusive authority over a work
rests in part on a "presuppos[ition]" that the work contains "a degree of
originality." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346, 111
S.Ct. 1282, 113 L.Ed.2d 358 (1991). Congress has recognized this same point,
extending copyright protection only to "original works of authorship. . . ." 17
U.S.C. 102 (emphasis added). Originality, thus, is said to be "[t]he sine qua
non of copyright." Feist, 499 U.S. at 345, 111 S.Ct. 1282. That is, not every
work of authorship, let alone every aspect of every work of authorship, is
protectable in copyright; only original expressions are protected. This
constitutional and statutory principle seeks to strike a delicate balance
rewarding (and thus encouraging) those who contribute something new to
society, while also allowing (and thus stimulating) others to build upon, add
to, and develop those creations. The copyright power is said to exist primarily
"not to reward the labor of authors, but to promote the progress of science and
the useful arts. . . . To this end, copyright assures [1263] authors the right to
their original expression, but encourages others to build freely upon the ideas
and information conveyed by a work." Id. at 349-50, 111 S.Ct. 1282 (internal
quotation and citations omitted).
26
What exactly does it mean for a work to qualify as "original"? In Feist, the
Supreme Court clarified that the work must be "independently created by the
author (as opposed to copied from other works)." Id. at 345, Ill S.Ct. 1282; see
also Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58, 4 S.Ct. 279, 28
L.Ed. 349 (1884) (the work for which copyright protection is sought must
"owe[ ] its origin" to the putative copyright holder) (internal quotation
omitted). In addition, the work must "possesses at least some minimal degree
of creativity," Feist, 499 U.S. at 345, 111 S.Ct. 1282; see also William F. Patry,
Patry on Copyright 3:27 ("both independent creation and a minimal degree
of creativity are required"), though this is not to say that to count as
containing a minimal degree of creativity a work must have aesthetic merit in

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the minds of judges (arguably not always the most artistically discerning lot).
As the Court explained through Justice Holmes, even "a very modest grade of
art has in it something irreducible, which is one man's alone. That something
he may copyright . . . ." Bleistein v. Donaldson Lithographing Co., 188 U.S.
239, 250, 23 S.Ct. 298, 47 L.Ed. 460 (1903); see also Feist, 499 U.S. at 345, 111
S.Ct. 1282 (all that's needed is some creative spark, "no matter how crude,
humble, or obvious").[5]
27
The parties focus most of their energy in this case on the question whether
Meshwerks' models qualify as independent creations, as opposed to copies of
Toyota's handiwork. But what can be said, at least based on received copyright
doctrine, to distinguish an independent creation from a copy? And how might
that doctrine apply in an age of virtual worlds and digital media that seek to
mimic the "real" world, but often do so in ways that undoubtedly qualify as
(highly) original? While there is little authority explaining how our received
principles of copyright law apply to the relatively new digital medium before
us, some lessons may be discerned from how the law coped in an earlier time
with a previous revolution in technology: photography.
28
As Judge Pauley admirably recounted in SHL Imaging, Inc. v. Artisan House,
Inc., photography was initially met by critics with a degree of skepticism: a
photograph, some said, "copies everything and explains nothing," and it was
debated whether a camera could do anything more than merely record the
physical world. 117 F.Supp.2d 301, 307 (S.D.N.Y.2000) (internal quotation
omitted). These largely aesthetic debates migrated into legal territory when
Oscar Wilde toured the United States in the 1880s and sought out Napoleon
Sarony for a series of publicity photographs to promote the event.[6] Burrow-
Giles, [1264] a lithography firm, quickly copied one of Sarony's photos and
sold 85,000 prints without the photographer's permission. Burrow-Giles
defended its conduct on the ground that the photograph was a "mere
mechanical reproduction of the physical features" of Wilde and thus not
copyrightable. Burrow-Giles, 111 U.S. at 59, 4 S.Ct. 279. Recognizing that
Oscar Wilde's inimitable visage does not belong, or "owe its origins" to any
photographer, the Supreme Court noted that photographs may well
sometimes lack originality and are thus not per se copyrightable. Id. ("the
ordinary production of a photograph" may involve "no protection" in
copyright). At the same time, the Court held, a copyright may be had to the
extent a photograph involves "posing the said Oscar Wilde in front of the
camera, selecting and arranging the costume, draperies, and other various
accessories in said photograph, arranging the subject so as to present graceful
outlines, arranging and disposing the light and shade, suggesting and evoking

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the desired expression. . . ." Id. at 60, 4 S.Ct. 279. Accordingly, the Court
indicated, photographs are copyrightable, if only to the extent of their original
depiction of the subject. Wilde's image is not copyrightable; but to the extent a
photograph reflects the photographer's decisions regarding pose, positioning,
background, lighting, shading, and the like, those elements can be said to
"owe their origins" to the photographer, making the photograph
copyrightable, at least to that extent.
29
As the Court more recently explained in Feist, the operative distinction is
between, on the one hand, ideas or facts in the world, items that cannot be
copyrighted, and a particular expression of that idea or fact, that can be. "This
principle, known as the idea/expression or fact/expression dichotomy, applies
to all works of authorship. As applied to a factual compilation," the particular
matter at issue in Feist, "assuming the absence of original written expression,
only the compiler's selection and arrangement may be protected; the raw facts
may be copied at will. This result is neither unfair nor unfortunate. It is the
means by which copyright advances the progress of science and art." Feist,
499 U.S. at 350, 111 S.Ct. 1282; see also id. at 351, 111 S.Ct. 1282 ("In no event
may copyright extend to the facts themselves."). So, in the case of
photographs, for which Meshwerks' digital models were designed to serve as
practically advantageous substitutes, authors are entitled to copyright
protection only for the "incremental contribution," SHL Imaging, Inc., 117
F.Supp.2d at 311 (internal quotation omitted), represented by their
interpretation or expression of the objects of their attention.
30
B
31
Applying these principles, evolved in the realm of photography, to the new
medium that has come to supplement and even in some ways to supplant it,
we think Meshwerks' models are not so much independent creations as (very
good) copies of Toyota's vehicles. In reaching this conclusion we rely on (1) an
objective assessment of the particular models before us and (2) the parties'
purpose in creating them. All the same, we do not doubt for an instant that the
digital medium before us, like [1265] photography before it, can be employed
to create vivid new expressions fully protectable in copyright.
32
1
33

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Key to our evaluation of this case is the fact that Meshwerks' digital wire-
frame computer models depict Toyota's vehicles without any individualizing
features: they are untouched by a digital paintbrush; they are not depicted in
front of a palm tree, whizzing down the open road, or climbing up a
mountainside. Put another way, Meshwerks' models depict nothing more than
unadorned Toyota vehiclesthe car as car. See Appendix A. And the
unequivocal lesson from Feist is that works are not copyrightable to the extent
they do not involve any expression apart from the raw facts in the world. As
Professor Nimmer has commented in connection with the predecessor
technology of photography, "[a]s applied to a photograph of a pre-existing
product, that bedrock principle [of originality] means that the photographer
manifestly cannot claim to have originated the matter depicted therein. . . .
The upshot is that the photographer is entitled to copyright solely based on
lighting, angle, perspective, and the other ingredients that traditionally apply
to that art-form." Nimmer on Copyright 3.03[C][3]. It seems to us that
exactly the same holds true with the digital medium now before us: the facts
in this case unambiguously show that Meshwerks did not make any decisions
regarding lighting, shading, the background in front of which a vehicle would
be posed, the angle at which to pose it, or the likein short, its models reflect
none of the decisions that can make depictions of things or facts in the world,
whether Oscar Wilde or a Toyota Camry, new expressions subject to copyright
protection.
34
The primary case on which Meshwerks asks us to rely actually reinforces this
conclusion. In Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir.2000)
(Skyy I), the Ninth Circuit was faced with a suit brought by a plaintiff
photographer who alleged that the defendant had infringed on his commercial
photographs of a Skyy-brand vodka bottle. The court held that the vodka
bottle, as a "utilitarian object," a fact in the world, was not itself (at least
usually) copyrightable. Id. at 1080 (citing 17 U.S.C. 101). At the same time,
the court recognized that plaintiff's photos reflected decisions regarding
"lighting, shading, angle, background, and so forth," id. at 1078, and to the
extent plaintiff's photographs reflected such original contributions the court
held they could be copyrighted. In so holding, the Ninth Circuit reversed a
district court's dismissal of the case and remanded the matter for further
proceedings, and Meshwerks argues this analysis controls the outcome of its
case.
35
But Skyy I tells only half the story. The case soon returned to the court of
appeals, and the court held that the defendant's photos, which differed in
terms of angle, lighting, shadow, reflection, and background, did not infringe

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on the plaintiff's copyrights. Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 765
(9th Cir.2003) (Skyy II). Why? The only constant between the plaintiff's
photographs and the defendant's photographs was the bottle itself, id. at 766,
and an accurate portrayal of the unadorned bottle could not be copyrighted.
Facts and ideas are the public's domain and open to exploitation to ensure the
progress of science and the useful arts. Only original expressions of those facts
or ideas are copyrightable, leaving the plaintiff in the Skyy case with an
admittedly "thin" copyright offering protection perhaps only from exact
duplication by others. Id.; see also SHL Imaging, Inc., 117 F.Supp.2d at 311
("Practically, the plaintiffs [photos] are only protected from verbatim
copying.").
36
[1266] The teaching of Skyy I and II, then, is that the vodka bottle, because it
did not owe its origins to the photographers, had to be filtered out to
determine what copyrightable expression remained. And, by analogythough
not perhaps the one Meshwerks had in mindwe hold that the unadorned
images of Toyota's vehicles cannot be copyrighted by Meshwerks and likewise
must be filtered out. To the extent that Meshwerks' digital wire-frame models
depict only those unadorned vehicles, having stripped away all lighting, angle,
perspective, and "other ingredients" associated with an original expression,
we conclude that they have left no copyrightable matter.[7]
37
Confirming this conclusion as well is the peculiar place where Meshwerks
stood in the model-creation pecking order. On the one hand, Meshwerks had
nothing to do with designing the appearance of Toyota's vehicles,
distinguishing them from any other cars, trucks, or vans in the world. That
expressive creation took place before Meshwerks happened along, and was the
result of work done by Toyota and its designers; indeed, at least six of the
eight vehicles at issue are still covered by design patents belonging to Toyota
and protecting the appearances of the objects for which they are issued. See 35
U.S.C. 171; Gorham Mfg. Co. v. White, 14 Wall. 511, 81 U.S. 511, 525, 20
L.Ed. 731 (1871) ("It is the appearance itself, no matter by what agency caused,
that constitutes mainly, if not entirely, the contribution to the public which
the law deems worthy of recompense."). On the other hand, how the models
Meshwerks created were to be deployed in advertisingincluding the
backgrounds, lighting, angles, and colorswere all matters left to those (G &
W, Saatchi, and 3D Recon) who came after Meshwerks left the scene. See infra
Section II.C. Meshwerks thus played a narrow, if pivotal, role in the process by
simply, if effectively, copying Toyota's vehicles into a digital medium so they
could be expressively manipulated by others.[8]
38
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Were we to afford copyright protection in this case, we would run aground on
one of the bedrock principles of copyright lawnamely, that originality, "as
the term is used in copyright, means only that the work was independently
created by the author (as opposed to copied from other works)." Feist, 499
U.S. at 345, 111 S.Ct. [1267] 1282 (emphasis added). Because our copyright
laws protect only "original" expression, the reason for refusing copyright
protection to copies is clear, "since obviously a copier is not a creator, much
less an `independent' creator." Patry on Copyright 3:28; see also id. ("The
key is whether original matter in which protection is claimed is the result of
plaintiff's ingenuity rather than appropriation of another's material."). As it
happens, many other courts before us have denied copyright protection in
analogous cases, involving copies of facts in the world, as well as copies of
prior works of art. So, for example, in Sparaco v. Lawler, Matusky, Skelly,
Engineers LLP, 303 F.3d 460, 467 (2d Cir.2002), our sister circuit, relying on
Feist, denied copyright protection to that portion of an architectural drawing
setting forth "the existing physical characteristics of the site, including its
shape and dimensions, the grade contours, and the location of existing
elements, [as] it sets forth facts; copyright does not bar the copying of such
facts." Much the same might be said here. See also ATC Distr. Group, Inc. v.
Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700, 712 (6th
Cir.2005) (denying copyright protection to catalog illustrations of
transmission parts "copied from photographs cut out of competitors'
catalogs"); Bridgeman Art Library, Ltd. v. Corel Corp., 36 F.Supp.2d 191, 197
(S.D.N.Y. 1999) (denying copyright protection to photographs that were
"`slavish copies' of public domain works of art"); Mary Campbell Wojcik, The
Antithesis of Originality: Bridgeman, Image Licensors, and the Public
Domain, 30 Hastings Comm. & Ent. L.J. 257, 267 (2008) ("[T]he law is
becoming increasingly clear: one possesses no copyright interest in
reproductions. . . when these reproductions do nothing more than accurately
convey the underlying image.").[9]
39
It is certainly true that what Meshwerks accomplished was a peculiar kind of
copying. It did not seek to recreate Toyota vehicles outrightsteel, rubber,
and all; instead, it sought to depict Toyota's three-dimensional physical
objects in a two-dimensional digital medium. But we hold, as many before us
have already suggested, that, standing alone, "[t]he fact that a work in one
medium has been copied from a work in another medium does not render it
any the less a `copy.'" Nimmer on Copyright 8.01[B]; see also Durham
Indus., Inc. v. Tomy Corp., 630 F.2d 905, 910 (2d Cir.1980) (holding that "the
mere reproduction of the Disney characters in plastic . . . does not constitute
originality as this Court has defined the term"); Entm't Research Group, Inc.
v. Genesis Creative Group, Inc., 122 F.3d 1211, 1221-24 (9th Cir.1997) (denying

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copyright protection to 3-D costumes based on 2-D cartoon characters). After
all, the putative creator who merely shifts the medium in which another's
creation is expressed has not necessarily added anything beyond the
expression contained in the original. See Bridgeman Art Library, Ltd., 36
F.Supp.2d at 199 (noting that "a copy in a new medium is copyrightable only
where, as often but not always is the case, the [1268] copier makes some
identifiable original contribution").[10]
40
In reaching this conclusion, we do not for a moment seek to downplay the
considerable amount of time, effort, and skill that went into making
Meshwerks' digital wire-frame models. But, in assessing the originality of a
work for which copyright protection is sought, we look only at the final
product, not the process, and the fact that intensive, skillful, and even creative
labor is invested in the process of creating a product does not guarantee its
copyrightability. See Feist, 499 U.S. at 359-60, 111 S.Ct. 1282; Howard B.
Abrams, Law of Copyright 2:8 ("Even if the process is both expensive and
intricate, an exact or near-exact duplicate of an original should not qualify for
copyright.") (emphasis added); Wojcik, supra, 30 Hastings Comm. & Ent. L.J.
at 267 ("This is not to say that [accurately reproducing an underlying image]
requires no skill or effort; it simply means that such skill and effort does not
suffice to invoke the highly advantageous legal monopoly granted under the
Copyright Act."). In the case before us, there is no doubt that transposing the
physical appearances of Toyota's vehicles from three dimensions to two, such
that computer-screen images accurately reflect Toyota's products, was labor
intensive and required a great amount of skill. But because the end-results
were unadorned images of Toyota's vehicles, the appearances of which do not
owe their origins to Meshwerks, we are unable to reward that skill, effort, and
labor with copyright protection.
41
2
42
Meshwerks' intent in making its wire-frame models provides additional
support for our conclusion. "In theory, the originality requirement tests the
putative author's state of mind: Did he have an earlier work in mind when he
created his own?" Paul Goldstein, Goldstein on Copyright 2.2.1.1. If an artist
affirmatively sets out to be unoriginalto make a copy of someone else's
creation, rather than to create an original workit is far more likely that the
resultant product will, in fact, be unoriginal. See Russ VerSteeg, Intent,
Originality, Creativity and Joint Authorship, 68 Brook. L.Rev. 123, 133 (2002)
("[A] person's intent to copy . . . should be considered strong evidence that

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what that person has produced is not copyrightable."). Of course, this is not to
say that the accidental or spontaneous artist will be denied copyright
protection for not intending to produce art; it is only to say that authorial
intent sometimes can shed light on the question of whether a particular work
qualifies as an independent creation or only a copy.
43
In this case, the undisputed evidence before us leaves no question that
Meshwerks set out to copy Toyota's vehicles, rather than to create, or even to
add, any [1269] original expression. The purchase order signed by G & W
asked Meshwerks to "digitize and model" Toyota's vehicles, and Meshwerks'
invoice submitted to G & W for payment reflects that this is exactly the service
Meshwerks performed. Aplt's App. at 113, 115. Meshwerks itself has
consistently described digitization and modeling as an attempt accurately to
depict real-world, three-dimensional objects as digital images viewable on a
computer screen. See, e.g., id. at 369 ("the graphic sculptor is not intending to
`redesign' the product, he or she is attempting to depict that object in the
most realistic way"); id. at 370 (goal is "to create a realistic depiction on the
computer screen"); id. at 378 ("Meshwerks' graphic sculptors [ ] create
realistic-looking depictions of complicated real-world objects on a two
dimensional screen . . . a digital representation of the real object"); id. at 455
(Meshwerks "basically draws a three dimensional rendering of that object in
the computer . . . it closely resembles the original"). The parties thus intended
to have Meshwerks create base-layer digital models to which the original and
creative elements viewers would see in actual advertisements could be added
by others in subsequent processes.
44
Other courts before us have examined and relied on a putative copyright
holder's intent in holding that the resultant work was not original and thus
subject to copyright protection. The Sixth Circuit, for example, held that a
series of catalog illustrations depicting auto transmission parts were not
independently copyrightable. ATC Distrib. Group, Inc, 402 F.3d at 712. The
drawings had been copied by hand from photographs in a competitor's
catalog. Id. In denying copyright protection, the court emphasized that "[t]he
illustrations were intended to be as accurate as possible in reproducing the
parts shown in the photographs on which they were based, a form of slavish
copying that is the antithesis of originality." Id. (emphasis added). In
Bridgeman Art Library, the court examined whether color transparencies of
public domain works of art were sufficiently original for copyright protection,
ultimately holding that, as "exact photographic copies of public domain works
of art," they were not. 36 F.Supp.2d at 195. In support of its holding, the court
looked to the plaintiff's intent in creating the transparencies: where "the point

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of the exercise was to reproduce the underlying works with absolute fidelity,"
the "spark of originality" necessary for copyright protection was absent. Id. at
197 (emphasis added). Precisely the same holds true here, where, by design,
all that was left in Meshwerks' digital wire-frame models were the designs of
Toyota's vehicles.
45
C
46
Although we hold that Meshwerks' digital, wire-frame models are
insufficiently original to warrant copyright protection, we do not turn a blind
eye to the fact that digital imaging is a relatively new and evolving technology
and that Congress extended copyright protection to "original works of
authorship fixed in any tangible medium of expression, now known or later
developed." 17 U.S.C. 102(a) (emphasis added). A Luddite might make the
mistake of suggesting that digital modeling, as was once said of photography,
allows for nothing more than "mechanical reproduction of the physical
features or outlines of some object . . . and involves no originality of thought
or any novelty in the intellectual operation connected with its visible
reproduction in [the] shape of a picture." Burrow-Giles, 111 U.S. at 59, 4 S.Ct.
279. Clearly, this is not so.
47
Digital modeling can be, surely is being, and no doubt increasingly will be
used to create copyrightable expressions. Yet, just as photographs can be, but
are not per se, copyrightable, the same holds [1270] true for digital models.
There's little question that digital models can be devised of Toyota cars with
copyrightable features, whether by virtue of unique shading, lighting, angle,
background scene, or other choices. The problem for Meshwerks in this
particular case is simply that the uncontested facts reveal that it wasn't
involved in any such process, and indeed contracted to provide completely
unadorned digital replicas of Toyota vehicles in a two-dimensional space. For
this reason, we do not envision any "chilling effect" on creative expression
based on our holding today, and instead see it as applying to digital modeling
the same legal principles that have come, in the fullness of time and with an
enlightened eye, to apply to photographs and other media.[11]
48
***
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Originality is the sine qua non of copyright. If the basic design reflected in a
work of art does not owe its origin to the putative copyright holder, then that
person must add something original to that design, and then only the original
addition may be copyrighted. In this case, Meshwerks copied Toyota's designs
in creating digital, wire-frame models of Toyota's vehicles. But the models
reflect, that is, "express," no more than the depiction of the vehicles as
vehicles. The designs of the vehicles, however, owe their origins to Toyota, not
to Meshwerks, and so we are unable to reward Meshwerks' digital wire-frame
models, no doubt the product of significant labor, skill, and judgment, with
copyright protection. The judgment of the district court is affirmed, and
defendants' request for attorneys' fees is denied.
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So ordered.

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